IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO PROVINCIAL DIVISION, POLOKWANE)

                                                              		CASE NO:  A083/2015
     					  
In the matter between:

MKUNDEYI SAMUEL MULAUDZI			APPELLANT

and

THE STATE						RESPONDENT

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JUDGMENT 
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 KGANYAGO J 

[1]	This appeal is directed against both convictions and sentence. 
The appellant was convicted by the Regional Magistrate Court Giyani on one count of murder read with the provisions Section 51(2) of the Criminal Law Amendment Act 105 of 1997. He was sentenced to 15 years imprisonment.

[2]	The question which this court must determine is whether the appellant has been correctly convicted of the charge he was facing and also whether the sentence meted to him is appropriate.

[3]	The background of the facts are as follows: On the night of the 2nd July 2007 the appellant came to the deceased homestead. He found the deceased and her daughter cooking beans. The deceased and the accused were in a love relationship. Later the deceased and the appellant want to another hut to go and sleep. The deceased daughter and her child also went to another hut to go and sleep.

[4]	At midnight the child of the deceased daughter started crying whilst comforting the child to stop crying, she heard of voice of someone trying to talk but the voice was not coming out. She then fell asleep. In the morning she was woken up by one lucky who is their neighbor.  
When she got out of her hut, she found the deceased lying at the door of her hut naked only wearing her panty. On inspection of the deceased, she found that she was dead and there was white foam coming from her mouth.

[5]	According to the appellant, during the night of the 2nd July 2007, he went to bed with the deceased. Whilst they were asleep, the deceased started coughing and also seeming as if she was struggling to breath. The deceased then went outside the hut. He then went to knock at the door of the hut, wherein the deceased daughter was sleeping in order to report the incident, but there was no response. He thereafter decided to leave the deceased homestead as he was scared. He denies having killed the deceased.

[6]	The trial court accepted the state version and rejected the version of the appellant. The appellant was found guilty as charged. In rejecting the appellant’s version, the trial court relied on the appellant’s warning statement and the deceased post mortem report. The appellant’s as admissible after a trial within a trial. However, when the appeal was argued before this court, the appellant warning statement and the deceased post mortem report did not form part of the record before this court. Also the full record of the trial within trial did not form part of the record full record.  This court was informed that the missing exhibits and full record of the trial within trial court not be found and were also unable to reconstruct that. From the transcribed record, it seems according to the post mortem report, the cause of the deceased death was strangulation.

[7]	In this case, there is no eye witness and the state case was based on circumstantial evidence. There is nothing with admitting circumstantial evidence. In some instances, circumstantial evidence is more convincing than direct evidence.

[8]	In the case of Jantjies v S (871/13) [2014] ZASCA 153 at paragraph 14 the court stated:
“It is common cause the crux of this matter is about drawing a reasonable inference from proved facts. (See R v Blom 1939 AD 188 at 202-203 where Watermeyer JA observed that:
In reasoning by inference there are two cardinal rules of logic which cannot be ignored:

(1)	The inference sought must be consistent with all the proved facts. If it is not, the inference cannot be drawn. 
(2)	The proved facts should be such that they exclude every reasonable inference from them save one sought to be drawn. If they do not exclude other reasonable inferences, then these must be a doubt whether the inference sought to be drawn is correct”.

[9]	In Mahlalela v S (396/16) [2016] ZASCA 181 (28 November 2016) at paragraphs 15 and 16 the court observed that:

“[15] The difficulty is that proved facts envisaged in Blom are facts proved beyond reasonable doubt. Intermediate inferences, too, must be based on proved facts. Inferences may not be drawn from other inferences. See the article by Nicholas AJA in (E Khan (ed) Fiat Justitia Essays in memory of Olive Deneys OD Schreiner (1983) at 312.
[16] Simply put, circumstantial evidence provides a basis from which the fact in dispute can be inferred. The salient question to be answered is whether the appellant was guilty of the crimes committed beyond reasonable doubt. All circumstantial evidence depends ultimately upon facts which are proved by direct evidence.” 

[10] 	 In the present case, the common cause and proved facts are that on the night of the 2nd July 2007, the appellant want to sleeps with the deceased who was his lover in a separate hut from that of the deceased daughters. It is also not in dispute that the deceased was found the following day dead next to the door at her hut naked wearing only her panty. When the deceased was found, the appellant has already left the deceased homestead. There is no one to shed light as what has happened in the deceased hut until the appellant left, except the appellant’s version.

[11]	According to the appellant, as they were sleeping, the deceased starting coughing and acting as if he was running short of breath. He went out of the hut they were sleeping in together with the deceased and went to knock at the deceased door to report the incident but there was no response. As he was scared, he left the deceased homestead.
[12]	However, according to the State the post mortem report state that the cause of the death was strangulation and that the appellant was the last person to be seen with the deceased, and therefore should be held responsible for the death of the deceased. That postmortem report is now missing and this court is unable to satisfy itself that indeed the cause of death was strangulation.

 [13]	The trial court had also relied on the appellant warning statement in convicting the appellant. During the trial, the appellant has objected to the admissibly of his warning statement as evidence. The appellant’s warning statement and the full record of the trial within trial are missing and does not form part of the record of the appeal. It is therefore difficult to determine whether all the requirements for the admissibility of that statement has been complied with. However, even if the appellant’s statement is missing, from what was read into record after the court has declared if admissible, it does not seem that the appellants had admitted any guilt. He has stated the same evidence that the deceased started coughing. What the trial court has relied upon was the contradictions that occurred in his evidence under oath during the trial and what appears in the warning statement.
 
[14]	As stated in Mahlalela’s case supra, circumstantial evidence provides the basis from which the fact in dispute can be inferred. Inferences must still be drawn from proved facts. It is trite that there is no duty on an accused person to tender any evidence, but once he/she decide to testify what the court must determine is whether the version presented is reasonably possibly true. The court does not have to be convinced that every detail of an accused version is true. The test to be applied in any particular case depends upon the nature of the evidence which the court has before it. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored (See S v Meyden 1999(1) SACR 447(W).

[15]	In the present case the inference drawn by the trial court was based more on the contradictions on the appellant testimony and what he has stated in his warning statement. However, what is more disturbing in this case, is the role which the trial Magistrate has played in this case. 
The trial Magistrate has clearly taken the role of the prosecution. 
There is nothing wrong with the court asking clarifying questions.

[16]	In the case of Maliga v The State (543/13) [2014] ZASCA 161 
(01 October 2014) on paragraph 19 the court observed that:

“Section 35(3) of the Constitution compels presiding officers and indeed all officers of court to play a role during the course of a trial in order to achieve a fair and just outcome. As was said in Hepworth at 277(supra) a criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge’s position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed. A judge’s note is to see that justice is done.”

[17]	In the present case the presiding Magistrate was not merely asking clarying questions but has taken the note of the prosecution. It was clear that the presiding Magistrate was supplementing the evidence of the state in order to prove the guilt of the accused. In my view, the way the trial Magistrate was questioning the witness and the accused has compromised his objectivity. He was eliciting answers that would prove the guilt of the appellant having realized that the state has failed to do so. Counsel for the respondent has conceded that the presiding Magistrate had taken the role of the prosecution.

[18]	Had the presiding Magistrate not played the role of the prosecution, there was no sufficient evidence to convict the appellant. Consequently in my review, the way the presiding Magistrate has handled the trial, has resulted in the appellant not receiving a fair trial as enshrined by Section 35 of the Constitution. The conviction therefore falls to be set aside. It follows that the sentence should also be set aside.

[19]	Counsel for the respondent is of the view that this matter should be referred back to the trial court to start de novo. The appellant was sentenced on the 13th July 2010 for fifteen years. He has already served almost half of his sentence. In my view, if the matter is referred back to the trial court to start de novo, it will be prejudicial to the appellant. It is the therefore, not in the interest of justice not refer this matter back to the court a quo to start de novo.

[20]	In the premises, the appeal is upheld.

[21]	The following order is proposed:-

21.1.	The appeal is upheld and the conviction and sentence are set aside.
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								KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA LIMPOPO PROVINCIAL DIVISION, POLOKWANE
					
I concur.

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								 KGOMO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA LIMPOPO PROVINCIAL DIVISION, POLOKWANE